COVID-19 PAID LEAVE IS NOW “OPTIONAL” – EMPLOYERS SHOULD PROCEED WITH CAUTION

As of December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) paid leave entitlements expired and employers are no longer required to offer their employees Emergency Paid Sick Leave (“EPSL”) or Emergency Family Medical Leave (“EFMLA”) for COVID-19 related absences from work.

The Department of Labor (“DOL”) recently updated its guidance on EPSL and EFMLA to address how employers may act on an employee’s request for COVID-19 related leave since the expiration date, stating clearly that employers are not required to provide employees with FFCRA leave after December 31, 2020. However, the DOL noted that employers may voluntarily provide EPSL and EFMLA to their employees and take advantage of employer tax credits offered by the Federal Government for FFCRA leave until March 31, 2021. In short, employers presently have no obligation to provide their employees EFMLA or EPSL but if an employer voluntarily provides their employees with EFMLA or EPSL leave, then they may take advantage of the FFCRA tax credits until March 31, 2021.

Employers must still evaluate if an employee request for leave, whether they have COVID-19 or have a child or family member home because of COVID-19, triggers an obligation to provide leave under FMLA or Rhode Island law. An employee may implicate FMLA if they have worked for an employer for over one year, worked for at least 1,250 hours in that year, and the employer has 50 or more employees. The State of Rhode Island also mandates that employers provide employees with Sick and Safe leave, which can offer employees up to forty hours of time off and would apply to COVID-19 related leave requests by employees for themselves or a family member.

Employers should also be wary that terminating an employee who has no leave available to them will implicate unemployment. Employees will be able to show “good cause” to collect unemployment if the employer’s stated reason for termination is that the employee requested a COVID-19 related leave – the employee had COVID-19 or needed time to address a family member’s COVID-19 issue – and the employee will then immediately be eligible to collect unemployment. At present, employees may receive unemployment benefits and an additional $300.00/week in additional pandemic unemployment benefits.

The Department of Labor and Training has waived the waiting period and “availability” requirements for COVID-19 related unemployment claims. Employers may want to consider encouraging employees to remain in the workforce and offering unpaid leave or voluntarily offer FFCRA leave until March 31, 2021 to employees who have no leave entitlement to avoid a termination and increased unemployment costs.

Pannone Lopes Devereaux & O’Gara LLC employment attorneys are monitoring this issue and will keep you apprised if the Biden Administration takes action to reinstate the FFCRA leave entitlements. If you have questions, please contact PLDO Partner Matthew C. Reeber at 401-824-5105 or mreeber@pldolaw.com or PLDO Principal William E. O’Gara at 401-824-5117 or wogara@pldolaw.com.


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Employment Law Overview

Pannone Lopes Devereaux & O’Gara LLC
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